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Smt. Suman Wd/O Mahadeorao Wagh vs Smt. Leelabai Wd/O Mahadeorao … on 30 August, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO.92 OF 2018

Suman wd/o Mahadeorao Wagh,
aged about 71 years,
Occupation Household,
R/o Ayodhya Nagar, At Post
Tah. Mardhi, District Amravati … Appellant.

-vs-

1. Leelabai wd/o Mahadeorao Wagh,
Aged about 78 years, Occupation : Household,
R/o Anjangaon Surji, Tah. Anjangaon Surji,
Dist. Amravati

2. The Chief Officer, Zilla Parishad
(Finance) Amravati, Tahsil and
District – Amravati … Respondents.

Shri B. N. Mohta, Advocate for appellant.
Smt I. P. Khisti, Advocate for respondent No.1.
Respondent No.2 served.

CORAM : A. S. CHANDURKAR, J.

DATE : August 30, 2018.

Oral Judgment :

The appellant is the original defendant No.1 who is aggrieved by

the judgment of the Courts below dismissing the counter-claim that was filed

in the suit filed by respondent No.1 herein in which it was prayed that the

defendant No.2 be directed to give all service benefits to her.

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The facts in brief are that it is the case of respondent No.1-

plaintiff that she is the legally wedded wife of one Mahadeo Wagh who was

serving with the respondent No.2 Zilla Parishad. He expired on

06/01/2015. However, during his lifetime he performed second marriage

with the appellant-defendant No.1. The defendant No.1 was already

married with one Shravan Bodhake when the second marriage was

performed. As the marriage between the plaintiff and Mahadeo Wagh was

subsisting said defendant No.1 did not have any right to claim the service

benefits. Suit was accordingly filed for a declaration that being the legally

wedded wife the plaintiff was entitled to get the amount of family pension.

The defendant No.1 filed her written statement and claimed that the plaintiff

had consented to her marriage with Mahadeo Wagh. Necessary documents

were signed by the deceased in which name of defendant No.1 was shown as

the person entitled to receive the service benefits. The defendant No.1 also

filed counter-claim seeking declaration that she be declared as the wife of

Mahadeo Wagh and hence she was entitled for the service benefits.

2. The trial Court held that the plaintiff had proved that she was the

legally wedded wife of Mahadeo Wagh. It was further held that she was

entitled to receive the service benefits in view of employment of the

deceased with defendant No.2. The suit was accordingly decreed and the

counter-claim was dismissed. Being aggrieved the defendant No.1 filed an

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appeal and the appellate Court confirmed that judgment.

3. The appeal has been heard on the following substantial questions

of law :

i) Whether the appellant is entitled to receive family pension along with
other service benefits ?

ii) Whether the appellate Court committed an error in not deciding the
application for leading additional evidence below Exhibit-8 along with
the appeal ?

iii) Whether the Court at Amravati has territorial jurisdiction to entertain
the suit ?

iv) Whether in absence of notice under Section 280 of the Maharashtra Zilla
Parishads and Panchayat Samities Act, 1961, the suit was
maintainable ?

4. Shri B. N. Mohta, learned counsel for the appellant submitted that

in view of the decision of the Honourable Supreme Court in Nitu vs Sheela

Rani and ors. (2016) 16 SCC 229, the provisions of the Hindu Marriage

Act, 1955 (for short, the Act of 1955) as well as Hindu Succession Act, 1956

(for short, the Act of 1956) were not liable to be taken into consideration

while determining the entitlement to the claim for family pension. It was

submitted that in accordance with Rule 116(6)(a) of the Maharashtra Civil

Services (Pension) Rules 1986 (for short, the said Rules) the widows of the

deceased were entitled to receive family pension. It was not permissible to

construe the expression “widow” by applying the provisions of the Act of

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1955 and considering the validity of the marriage of the deceased.

Reference was made to Rule 111(5) of the said Rules. It was submitted that

the decisions of this Court in Ramabai Gulabrao Jamnik vs. State of

Maharashtra and ors. 2018(1) Mh. L.J. 795 and Chanda Hinglas

Bharati vs. State of Maharashtra Ors. 2016(2) Bom. C.R. 623 do not

take into consideration the legal position as laid down in the judgment of the

Honourable Supreme Court referred to herein above. Thus according to the

appellant validity of marriage is not an aspect to be considered while

considering the claim of grant of family pension. It was then submitted that

though an application below Exhibit-8 was filed before the appellate Court

under provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908,

that application was not decided along with the appeal. This aspect

vitiated the judgment of the appellate Court. Same was thus liable to be set

aside. Further the Court at Amravati did not have territorial jurisdiction to

decide the suit inasmuch as no part of the cause of action arose at Amravati.

It was further submitted that the suit as filed without issuing notice under

Section 280 of the Maharashtra Zilla Parishad and Panchayat Samities Act,

1961 (for short, the Act of 1961) was not maintainable. Though this point

was not raised before both the Courts, as the same goes to the root of the

matter the suit was not maintainable in absence of such notice. In support of

his submissions the learned counsel also placed reliance on the following

decisions :

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I) Smt Violet Issaac and ors. vs. Union of India and ors. (1991) SCC
725.
II) Rameshwari Devi vs. State of Bihar and ors. (2000)2 SCC 431
III) Laxmibai Shripat Kumar vs. Chief Executive Officer, Zilla Parishad
and ors. 2004(6) BomC.R. 744
IV) Union of India vs. Renuka Ambadas Malve and ors. 2006(111) FLR
149
V) Kantabai w/o Dhulaji Shriram and ors. vs. Hausabai Dhulaji
Shriram and ors. 2015(3) Mh.L.J. 883
VI) Union of India and anr. Jaywantabai wd/o Ramrao Kewoo 2015(2)
Mh.L.J. 328.
VII) Badshah vs. Urmila Badshah Godse and anr. (2014) 1 SCC 188.

5. The learned counsel for respondent No.1 supported the impugned

judgment. According to her the provisions of Rule 116(6)(a) of the said

Rules have been interpreted by the Division Bench of this Court and the law

as laid down therein was binding and would have to be followed. It was

submitted that the decision sought to be relied upon by the learned counsel

for the appellant did not exclude the application of the Acts of 1955 and

1956. Both the Courts rightly held that as the marriage of defendant No.1

was not legal and valid, it having been performed during subsistence of

earlier marriage the defendant No.1 was not entitled to the service benefits.

The learned counsel placed reliance on the decision in Kunda Rushi

Meshram vs. Sushila Rushiji Meshram 2017 Law Suit (Bom) 2697 and Zilla

Parishad Nagpur Through its Chief Executive Officer vs. Shrirang s/o Wadguj

Wanjari and ors. Second Appeal No.2/2014 decided at the Nagpur Bench on

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30/04/2014 in support of her submissions.

It was then submitted that the document sought to be placed on

record in the form of additional evidence did not support the case of

defendant No.1. That document was a Will executed by deceased and same

would not confer any right on defendant No.1 to claim family pension. The

objection with regard to lack of territorial jurisdiction was not raised either

before the trial Court or the appellate Court. Similarly, no plea was taken as

to absence of notice under Section 280 of the Act of 1961 and hence same

cannot be permitted to be raised at this stage. It was thus submitted that

no interference was called for with the impugned judgment.

6. I have heard the learned counsel for the parties at length and I

have given due consideration to their respective submissions. The case of

defendant No.1 is sought to be canvassed by relying upon the decision of the

Honourable Supreme Court in Nitu (supra). Facts of that case indicate that

one Yashpal was serving under Haryana Government. After his death the

family pension payable to his widow was determined. The mother of said

Yashpal initiated proceedings for obtaining succession certificate on the basis

of which he desired to claim pension. In those proceedings the widow

appeared and stated that she alone was entitled to receive the amount of

same. The trial Court held the widow to be entitled to grant succession

certificate so as to receive the amount of compensation. The appellate

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Court maintained that judgment. The High Court however held that in view

of provisions of Section 8 of the Act of 1956, the mother being one of the

heirs of late Yashpal was entitled to receive the succession certificate. That

judgment was challenged before the Honourable Supreme Court by the

widow. After considering the Family Pension Scheme 1964 of the

Government of Punjab it was held that under definition of the term “family”,

the mother was not included therein. It was only the parents of an

unmarried officer who were included in the said definition and that

definition was not applicable as said Yashpal was married. It was then

observed that though under the Act of 1956 the mother would be one of the

heirs to receive the properties of the deceased, pension was to be given in

accordance with the provisions of the Scheme and therefore only the person

entitled to get the pension as per that Scheme would receive it. It was

further observed that if the deceased had left any other assets then the

mother would be entitled to claim her share in those properties. It was thus

held that the entire pension was payable to the widow.

Though it was strenuously urged by the learned counsel for the

appellant that the provisions of the Act of 1956 have been made inapplicable

in the matter of grant of pension, the said judgment indicates that it has

been held therein that the rights of the parties would be governed by the

relevant Scheme and only the person entitled as per that Scheme would get

the pension. It is not the ratio of that decision that the provisions of Act of

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1956 have been made inapplicable in the matter of grant of family pension.

Be that as it may, the ratio of this decision does not take the case of the

appellant any further in view of the fact that the provisions of Rule 116(6)

(a) of the said Rules have been considered and interpreted by the Division

Bench of this Court in Chanda Hinglas Bharati (supra) wherein it has been

held that the clause ” where the Family Pension is payable to more widows

than one ” would apply to widows where the personal law permits more

than one marriage at the same time. It has been held in clear terms that

after 18/05/1955 family pension would not be payable to a woman who

marries a Hindu Government Servant during the subsistence of his marriage

and during lifetime of his wife. In the light of this clear legal position it is

obvious that the appellant who is the second wife and that marriage having

taken place during subsistence of the marriage of the plaintiff and during her

lifetime, the defendant No.1 stood excluded from being entitled to claim

family pension. The aforesaid judgment has been followed by the Division

Bench in Ramabai Gulabrao Jamnik (supra) as well as by learned Single

Judge in Kunda Rushi Meshram vs. Suhila Rushiji Meshram decided on 19th

December 2017, 2017 Law Suit (Bom) 2697. The other decisions relied do

not support the case of the appellant. Hence substantial question of law

No.(i) is answered by holding that the appellant is not entitled to receive

family pension along with other service benefits.

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7. As regards the other substantial questions of law it may be noted

that the additional evidence sought to be led by the appellant was in the

form of Will dated 19/09/2001 that was executed by deceased Mahadeo. As

per that Will certain property was bequeathed to his son from the marriage

with the plaintiff. Similarly, life interest was created in the house property

in favour of defendant No.1. Even if it is assumed that said Will is taken

into consideration, it also does not have the effect of validating marriage of

defendant No.1. Hence no prejudice can be said to be caused to defendant

No.1 on account of non-consideration of the effect of said Will in the form of

additional evidence.

The objection to the territorial jurisdiction of the Court at

Amravati was not raised by defendant No.1 either in the trial Court or

before the first appellate Court in the light of provisions of Section 21 (1) of

the Code. The objection to territorial jurisdiction has to be raised at the

first instance after which it is deemed to have been waived. In absence of

any such objection being raised and no failure of justice being demonstrated,

it is not open for defendant no.1 now to contend otherwise.

Similar is the situation with regard to the absence of notice under

280 of the Act of 1961. In the written statement no plea has been raised

that notice under Section 280 of the Act of 1961 was not issued before filing

the suit. Moreover it is to be noted that if such objection has to be raised, it

has to be raised by the Zilla Parishad and not defendant No.1. Such

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objection not having been raised by defendant No.2-Zilla Parishad at any

stage whatsoever, same cannot be now raised by defendant No.1.

8. Accordingly, substantial question of law Nos.(ii) to (iv) are

answered against the appellant. As a result it is held that there is no case

made out to interfere with the judgment of the trial Court as confirmed by

the first appellate Court.

The Second Appeal is therefore dismissed with no order as costs.

JUDGE

Asmita

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